I went
back to The Newseum in Washington DC today for a discussion of a new book,
The Great Decision by Cliff Sloan and David McKean, about the seminal 1803 US Supreme Court case
Marbury vs. Madison that established the judiciary as the final interpreter of the US Constitution.
The celebrity speaker was Supreme Court Justice John Paul Stevens, but he really did little more than introduce the topic and ask a few softball questions during the talk. His participation was surely a favor to Cliff Sloan, a lawyer, who served as a Supreme Court law clerk under Stevens and was the former publisher of Slate magazine.
The only things really new was Justice Stevens' surprising vehemence that Presidents should follow the example of Presidents Ford and Reagan, who made the trip to the Supreme Court for the swearing in of new justices, as opposed to having them come to the White House. Though largely symbolic, he felt this was part of the respect to the institution as a co-equal branch of government and for the principle of separation of powers.
Nonetheless, the conversation was engaging and provided a lot of insight into the charged political atmosphere and personal rivalries that surrounded the Marbury case. It also became clear that Chief Justice John Marshall was the driving force who shaped the Supreme Court into the institution that it is today.
BackgroundOn the surface, Marbury vs Madison was about whether a lame-duck appointee to the federal judiciary by the outgoing administration of one party (President John Adams' Federalist Party) would be seated by the incoming Republican administration of President Thomas Jefferson.
But landmines abounded in the case. Marshall himself had been Secretary of State under Adams and a staunch Federalist, and the 1800 Presidential Election resulted in chaos, with the Federalists voted out of office and the electoral college tie between Republicans Jefferson and Aaron Burr decided in the House of Representatives. The nation teetered on the brink of collapse.
Due to an overlap in his positions, in February 1801 Marshall actually simultaneously served as both Secretary of State and in his new role as Chief Justice of the Supreme Court. In the former role he was personally and directly involved in the rush to issue the lame duck appointments, handling much of the paperwork and responsible for it being served to the appointees.
The judicial appointments were an attempt at packing the judicial system with Federalists; 16 new circuit courts had been established in the waning days of the Adams administration, and candidates were hastily appointed to these positions and 42 others at literally the final hour.
In the crush, Marshall was unable to deliver all of the appointments, setting the stage for the conflict. Jefferson personally stopped the delivery of the remaining letters of appointment, and William Marbury sued to get the job of Justice of the Peace for District of Columbia.
Though under modern rules Marshall would have been required to recuse himself, under the conditions of the time the only mandatory criteria for recusal was personal financial interest, which did not apply.
A Messy Political Situation
The judiciary was still controlled by the Federalists, and it was widely expected that the Court would rule in favor of Marbury and other similar Federalist petitioners. The new Republican Congress suspended the Court for almost a year, through most of 1802.
Complicating the situation, it's not clear that Jefferson would have complied with such a ruling. The Federalists had rammed through the Alien and Sedition Acts of 1798, which sought to suppress criticism of the federal government and protect the country against foreign agents during a period of conflict with France.
The Federalist-dominated judiciary had upheld and enforced the Acts, which many argued were unconstitutional, and so the judicial branch was considered highly-suspect when the Federalists were swept out of office.
In a final twist, Jefferson and Marshall were distant cousins who hated each other. Author Sloan asserts that this was in part because Marshall revered George Washington (having been at Valley Forge with him), and Jefferson was viewed as disrespectful to Washington. In any event, their personal animosity was clear.
The Ruling
So if the Court upheld Marbury's appointment, Jefferson could simply ignore it; and if it ruled against Marbury, the Republicans would be seen as having scored a political victory.
In this super-charged environment Marshall skillfully delivered a ruling that dumbfounded the observers of the day, and is viewed by many as one of the great decisions that firmly established the rule of law.
Marshall ruled that:
- Marbury was legally entitled to his commission.
- The law required that the government enforce this proper appointment.
- But, the Supreme Court did not have jurisdiction in the case because the Congressional law giving it jurisdiction was unconstitutional.
Thus Marshall, who wrote the opinion, was able to criticize Jefferson at length for his actions -- and then nullify the decision while ruling on the constitutionality of a law of Congress. And he did it in a way that was at least nominally self-denying, thus cleverly pulling the fangs of critics.
The Impact
Marbury never got his appointment. But the ruling firmly established the Supreme Court as the final interpreter of the US Constitution, a principle called judicial review, which Marshall explicitly states in the decision:
It is, emphatically, the province and duty of the judicial department, to say what the law is.
According to the Great Decision authors, most newspapers simply published the decision in full without comment. The ruling would send Jefferson into tirades for the rest of his life, as he disagreed with the principle it established.
By giving up a small tactical issue, Marshall was able to win on the much larger question of whether the Supreme Court could review the actions of the other branches, a precedent that would set the case for the many critical cases Marshall would oversee in his 34 years as Chief Justice. He would consistently rule in a manner that strengthened the central government in disputes with states, establishing the power of the federal government.
Miscellaneous
With Marbury vs Madison, Marshall also enforced a new tradition within the Supreme Court, the practice of joint opinions. Previously, each of the judges would issue an individual opinion in each case.
Because of the force of Marshall's personality and his winning, genial demeanor, he was able to strongly influence the Court and wrote the majority opinion in the most important cases.
The Venue
The discussion was held in The Freedom Forum, an associated conference center on the back side of The Newseum. The room held perhaps 300 people, of which about 50 seats were reserved for Annual Press Pass members of The Newseum (the rest were largely occupied by members of the sponsoring organization, The Freedom Foundation, or by The Supreme Court Fellows program).
It's an opportunity to hear and participate in discussions with a highly-interested, learned group. One of the audience members who commented extensively was Maeva Marcus, Director of the Institute for Constitutional Studies and Research Professor of Law at The George Washington University and editor of a book on the predecessor to the Marshall Court, The Documentary History of the Supreme Court of the United States, 1789-1800.
But I'll be selective about attending events due to the extensive travel time required for me.
Other Trivia
- Marbury vs. Madison was issued in the lobby of Stelle's Hotel. Justice Samuel Chase had a painful case of the gout and was unable to walk to the Supreme Court's offices, so in order to have a quorum Marshall moved the Court's sessions to the boarding house where the Justices were staying. Stelle's was located on either the current site of the Supreme Court or right next to it.
- Marbury vs. Madison is highlighted in the Rotunda of the National Archives building, where the original Declaration of Independence, US Constitution, and Bill of Rights are displayed.
- According to Sloan and Stevens, when Stevens was first appointed to the Supreme Court in 1975 and moved to Washington DC, he was asked for his occupation on his voter registration form. Stevens wrote, "Justice." The man taking his application looked at him and then said, "Last week we had 'Peace.'"
- The session moderator got a perhaps unintentional laugh when, in introducing Justice Stevens, he stated that he had ruled on 112 cases regarding freedom of expression since 1975 -- "24 of them in the majority."
